The Kokopenace case and Aboriginal representation in the administration of justice

The recent backlash over the actions of prosecutors in the criminal trial of Bradley Barton, accused of the first degree murder of Cindy Gladue and found not guilty by a panel of 11 jurors, raised concerns over the treatment of Aboriginal victims by the justice system and how Ms. Gladue in particular was dehumanized by the way prosecutors presented evidence of the crimes committed against her. Some commentators noted that underrepresentation of Aboriginal peoples on juries in Edmonton was a problem and asked whether this underrepresentation played a role in the outcome in this case.

Last week the Supreme Court of Canada released its decision in R v. Kokopenace, concerning the issue of underrepresentation of Aboriginal people living on reserves on jury rolls in Ontario. Kokopenace referenced the findings of a February 2013 report by the Honourable Frank Iacobucci that explored representation of Aboriginal people on juries in Ontario. The report described the justice system as being “in crisis,” with Aboriginal people overrepresented in prisons, but significantly underrepresented in all facets of the administration of the justice system, including on juries.

The decision of the Supreme Court in Kokopenace was divided, with four of the seven judges finding that despite the underinclusion of individuals living on reserves in the District of Kenora on jury rolls, Mr. Kokopenace’s right to a fair, impartial and representative jury under the Canadian Charter of Rights and Freedoms was not violated. Two dissenting judges, Justice Cromwell and Chief Justice McLachlin, found that the province was required to take steps to ensure that jury rolls are representative, and did not meet its obligations in that regard. The dissenting judges rightfully hold the province to a high standard, requiring it to take steps that would actually make jury rolls representative.

The right to a representative jury

Clifford Kokopenace, an Aboriginal man convicted of manslaughter, argued that he was denied the right to an independent and impartial trial by jury because of underrepresentation of Aboriginal people living on reserves in the jury rolls for the District of Kenora. In the 2008 jury roll from which Mr. Kokopenace’s jury members were selected, Aboriginal people living on reserve made up only 4.1 per cent of the individuals, despite making up 30 per cent of the general population in the district.

In Canada, the right to an independent and impartial jury means that the government cannot deliberately exclude certain groups from the jury roll, the list of individuals eligible to serve on a jury. It does not mean that the “petit” jury — the group of individuals selected to make up the jury at a trial which makes a finding of guilty or not guilty at the end of trial — needs to mirror the diversity of the general population perfectly.

The majority of the Supreme Court found that Ontario made reasonable efforts to ensure that Aboriginal people on reserve were included in the jury roll, even though the province’s efforts to increase Aboriginal participation and assemble a representative jury roll were unsuccessful. As a result, they found no violation of Mr. Kokopenace’s Charter rights.

The province’s obligations to ensure representative rolls

As pointed out by the dissenting judges in Kokopenace, the majority’s decision conflated a representative jury roll with a representative jury. According to the dissent, as long as the jury was selected from a representative jury roll, the accused’s right to a fair, independent and impartial hearing would be met. The jury did not have to accurately reflect the diversity of the general population, but the jury roll should come close. The drastic underrepresentation of on-reserve Aboriginal people on the jury roll in Kokopenace meant that Mr. Kokopenace’s right to a fair trial was not met; the petit jury would not be selected from a representative roll.

Both the majority and the dissenting decision in Kokopenace placed an obligation on the province to take steps to ensure a representative jury roll. However, the majority found that as long as the province made reasonable efforts to include underrepresented groups, it has met its constitutional obligations, even if its efforts are unsuccessful.

The dissent concluded that the province had a positive obligation to take steps to ensure that Mr. Kokopenace’s rights were upheld. Justice Cromwell stated that “in order to determine whether the state has complied with its Charter obligations, the state conduct must be assessed in light of its contribution to the problem and its capacity to address it.” He concluded that state “action or inaction” was tied to Aboriginal underrepresentation on jury rolls in Ontario.

The majority decision in Kokopenace demonstrates the court’s reluctance to second-guess state action in the administration of the justice system. Setting a low bar to address issues of representation in the justice system provides an avenue for the government to maintain the status quo, which not only impacts the rights of an accused who is Aboriginal, but also affects Aboriginal victims whose voices aren’t reflected in the justice system.

In the case of Ontario, the province has taken some steps to address the findings of the Iacobucci report, including allowing Aboriginal people living on reserves to volunteer for jury rolls for the purposes of inquests under the Coroner’s Act. A more critical finding by the majority of the Supreme Court in Kokopenace would encourage further action by the province to ensure representative jury rolls in criminal and civil court cases as well.